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Cobbled Together?

In fact, that's a nice pun but entirely unfair (regular readers will know this is not something that generally stops me using a good pun once thought of). Cobb J's committee has reported on private law, and it makes many proposals and politely passes back some bucks. To government, to those responsible for "policy". Like the one about just how the courts are to deal with cases that genuinely require experts but for which there is no mechanism for payment. It's easy to give something the committee treatment. But not even a Cobb Committee can't solve unanswerable riddles any more than Bob the Builder can fix it without his tools....

Interestingly, no 26 weeks proposal and unsurprisingly many pleas for more and better information for LiPs.

I planned to blog properly about all this tonight but am feeling rather unwell. And its getting late.

Link to the material is here (click through to Guidance Locator). I will post a proper blog in due course... It is important.

Incidentally, it comes just as the stats for private law issue have dropped by 9% (Oct 13 compared to Oct 12), following a pretty massive post-LASPO spike. I think its pretty clear that was a lag from last minute certificates granted just prior to 1 April, the question is whether or not the 9% drop is representative of the underlying issue rates for those now ineligible for public funding. Have they given up already? Or will we see rates pick up again?

Anyhoo. Off to bed. Have a private law case tomorrow in respect of which public funding and expert evidence has been crucial...As with all these cases I wonder what would happen if it had been post 1 April?

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9 thoughts on “Cobbled Together?”

I’ve taken a look but it is just tinkering around the edges to ameliorate a bad problem that cannot change without a more basic shift in family policy that would affect and go beyond, the Children Act itself. The practice pattern will just shove it out to mediation, fair enough, but the bad penny will inevitably roll back sooner or later. And what then?

The Children Act still operates largely unchanged and within a fundamentally biased anti-father environment and the same unsatisfactory outcomes can be confidently predicted. What you have at the moment from Mr Justice Cobb are proposals that primarily put the needs of mothers first over those of fathers and their children. His report is peppered with the usual domestic violence or contact-only-when-it’s-safe litany but nowhere are equivalent issues raised of more obvious interest to applicant fathers such as how courts will deal with false allegations, parental rejection through alienation and above all, the straightforward, unreasonable denial of contact, perhaps the most prosaic feature of ordinary family cases.

The law will still operate without proper guidelines for parental involvement and without a proper presumptive basis. After all, wasn’t it Timpson himself, that family law barrister aka the children’s minister, who states the problem is purely one of tackling a perception of bias within the courts.

Paul,
On what basis do you say that “What you have at the moment from Mr Justice Cobb are proposals that primarily put the needs of mothers first over those of fathers and their children.”?
Should contact take place when it is not safe?
In respect of denial of contact the CAP proposals incorporate the testing of allegations to establish whether false, improved case management and better use of monitoring and enforcement tools – currently very underused.
The committee was not asked to look at reform of the law but improvement of the process.

Just one example. Why did the Children Act require a completely new provision for child safety? Please tell me what has been happening over the past twenty years to suggest child safety has been ignored and that repeated references to it must now go into primary legislation?

To answer your question, where does the Children Act 1989 suggest that contact take place which puts the child at risk? I thought there was a welfare checklist and an overriding principle which puts the child first.

There is as much need for references to child safety to go into the Children Act as there is for clauses making it compulsory to feed your child or put her to bed at night. You know as well as I do why that clause is in there and it has nothing to do with looking after children properly. It’s an unnecessary piece of jurisprudential baggage, in there for strictly political reasons. Shame on those politicians who acceded to the harridan cries from domestic violence organisations and social policy professors because they’ve now made the act itself political.

People are protected by the common law and countless pieces of legislation besides. No need for this at all.

As to contact denial, I have a father now who’s just asked me what to do about a situation where his ex- for no good reason whatsoever, has broken off his long established two nights a week ‘contact’ for no good reason at all. They just happened to have had some stupid argument over nothing in particular and she’s got the hump with him. Apparently she is prone to doing this, usually without any real duration. But now it’s been three weeks of no contact and he’s getting fed up himself. His overnights have been going on for years along with the support of his current partner so the arrangements are all very settled apart from the occasional hiatus. By rights that bloke should be able to make an application and get this long standing arrangement written out on the spot in the form of an order. He’s not interested in mediation. He doesn’t want any dealings with Cafcass or S.7 court reports or mediation sessions. He simply wants what he has already, enforced, end of, so his ex- partner can no longer (or so he thinks!) get away with her petty ways.

Where is the provision under Cobb’s proposals to give him what he needs? By rights he ought to be able to make a without notice application, just like all those non-molestation applications that have been dished out like Smarties over the years.

I think you are referring to the presumption of parental involvement and the caveat about safety – I imagine it is there to avoid any suggestion that the presumption trumps safety. This is the consequence of tinkering with the paramountcy principle I’m afraid. If you prioritise one factor you have to rebalance references to other important factors to avoid a distortion that was never a risk before.

One might say there was no need for a presumption in the first place, as the courts operate on that basis anyway. Frankly, I’ve yet to meet anyone who thinks this is going to be an amendment that will assist any cause or child – although different people will give a variety of contradictory reasons for that being so.

As I’ve previously said, Cobb J has not been asked to review the law itself, merely the procedure. There is no reason to think that the person you are referring to won’t be able to get his orders enforced in the usual way under the new programme. All Cobb’s proposals say about without notice applications is that they should only happen when genuinely necessary. This doesn’t stop courts making orders without notice for good reason, or listing on short / informal notice where urgent. I agree that non-molestation orders are very often granted on an interim basis without notice, often but not always with good cause – if an applicant is fearful of the reaction and needs protection before the respondent finds out then without notice is absolutely right, but there are cases which are non-urgent and where the risk is of a different nature so it can and should be dealt with on notice. Don’t forget it is both men and women who apply for non-molestation orders. I have acted for both men and women applicants and respondents and in my experience the approach of the courts is the same regardless of gender. Usually short orders are made and the matter is listed on notice within a week.

You miss my point. If a mother can walk in off the street and obtain a non-molestation order then a father who is having his longstanding, uncontentious contact disprupted ought to be able to do the same. The two situations are comparable and the law is applied unfairly. She walks off with an order. He gets sucked into months, if not years, of wrangling.

Why doesn’t Mr Justice Cobb get to grips with real life situations like that?

No, not missing your point at all. But I don’t think you are right. It’s not tit for tat. The purpose of ex parte non mols is entirely different. Broadly speaking they are necessary to avoid the purpose of the order being frustrated in the first place.
Delay in relation to obtaining or enforcing contact orders is to be deprecated but ex parte enforcement / making of orders is not justified simply on the basis that mothers often apply for non molestation orders ex parte. Courts have to be cautious about making any more than necessary orders in a hasty one sided hearing – it is absolutely right that they should defer decisions until they have gathered some information and given both parties a chance to speak. This is the process after all when a mother seeks to vary an order (although I concede that in reality she may breach it in the meantime). Similarly ex parte interim residence orders are rarely given – courts almost always list such cases on notice within a day or two.
Again, Cobb is dealing with procedure – not substantive law reform.

Non-molestation orders have been dished out like sweets. A high percentage are unjustified, unwarranted and issued on false evidence. However, mum gets her order on no notice while dad who simply wants his contact back can whistle in the wind. Those are illustrative examples which show that the practical application of children law affects mothers and fathers very differently. The rules on procedure ought to recognise and accomodate the differing needs of parents. They don’t. The law operates strongly in favour of the mother which is why fathers have been bitching about the law for years.

The existing presumption in law is for a bare minimum of contact. The new clause adds nothing really of substance and the tinkering around for balance you refer too will arguably worsen matters. The added emphasis on child safety will predictably colour every single private law application. I’d liken any mother who fails to use that clause to her advantage as being comparable to Ronaldo missing an open goal.

Paul,
I think we are going round in circles a bit here.
Non-molestation orders are not child law. They are applied for by both men and women, sometimes with justification, sometimes not.
If there is a concern about safety that must be dealt with before a child can be potentially exposed to harm through the imposition of an order for contact. That does create real difficulties for dads who are the subject of false or overblown allegations, but it can’t be right that this justifies such concerns being ignored. I have seen dads make spurious allegations against mums – I would not expect to see those disregarded without being properly looked at either. The problem is untruthful or manipulating parents not necessarily the system itself – although the quicker it can be got to move the less the prejudice to the child and to dad (or mum).
I don’t think the new caveat to the presumption will take anybody much further. Like I say, from where I am it doesn’t really represent a change to the existing law.

So what do we finally see by way of reform to Norgrove’s ‘broken system’ as he described it? In private law, a new emphasis on child safety and some fiddling around with the procedural rules. All that fancy work including trips to Australia for this?